Karnataka High Court
Mangalore Chemicals And Fertilizers ... vs State Of Karnataka on 25 February, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 25TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO.9071/2013(LA-KIADB)
BETWEEN:
MANGALORE CHEMICALS & FERTILIZERS LTD.,
A COMPANY INCORPORATED UNDER HE
COMPANIES ACT 1956 WITH ITS
REGISTERED OFFICE AT
LEVEL-11, U B TOWERS, UB CITY,
VITTAL MALLYA ROAD,
BANGALORE-560001.
REPRESENTED BY ITS SENIOR VICE PRESIDENT
(FINANCE) AND COMPANY SECRETARY
MR K RAGHUVEERAN
S/O MR K RATNAKAR MALLYA
AGED ABOUT 59 YEARS ..PETITIONER
(BY SRI R NATARAJ, ADV)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF INDUSTRIES & COMMERCE
M S BUILDING
BANGALOE-560001
REPRESENTED BY ITS
PRINCIPAL SECRETARY
2
2. KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
NRUPATHUNGA ROAD,
BANGALORE-560001
BY ITS CHIEF EXECUTIVE OFFICER
3. SPECIAL LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
MANGALORE-575006
4. MANGALOE SEZ LIMITED
3RD FLOOR, MUDA BUILDING
URWASTORE, MANGALORE-575006
BY ITS MANAGING DIRECTOR
..RESPONDENTS
(BY SRI H T NARENDRA PRASAD, GA FOR R-1)
THIS WRIT PETITION IS FILED UNDER
ARTICLE 226 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE IMPUGNED
NOTIFICATION DATED 29.12.2012 ISSUED BY THE
R1 U/S 28(4) OF THE KARNATAKA INDUSTRIAL
AREAS DEVELOPMENT ACT AND PUBLISHED IN
THE OFFICIAL GAZETTE ON 31.12.2012 WHICH IS
ENCLOSED AS ANNEX-N.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT
MADE THE FOLLOWING:
3
ORDER
Petitioner claims to have acquired right, title and interest over land measuring 133.19 acres comprised in several survey numbers morefully described in the schedule to the sale deed dated 8.8.1986 Annexure 'A', executed by the respondent- Karnataka Industrial Areas Development Board, for short 'KIADB' and rectified over the extent of land as 128.03 acres by a Rectification Deed dated 22.10.1990 Annexure 'B'. Petitioner asserts, by yet another Sale Deed dated 5.9.2003 executed by KIADB Annexure 'C', petitioner secured right, title and interest over 71.97 acres comprised in several survey numbers and blocks 'A' to 'J' as described in the schedules therein and as de-alienated in the sketches annexed therein.
2. It appears that the petitioner and M/s Mangalore Refineries and Petro Chemicals Limited, 4 for short 'MRPL' entered into a deed of license on 22.4.2004, Annexure 'D', whereunder 'MRPL' was extended permission to use certain portions of petitioner's land for laying pipelines of the licensee, more fully described in the schedule therein.
3. During the year 2009, Mangalore SEZ Ltd., the 4th respondent, for short 'MSEZ' sought petitioner's land licensed to MRPL for a proposed pipeline cum road corridor as indicated in the letter dated 1.10.2009 Annexure 'E', a copy of which was addressed to the petitioner, enclosing a plan Annexure E1. According to the petitioner, a meeting of the officers of the MSEZ, the petitioner and MRPL led to the recording minutes of the meeting dated 3.10.2009 Annexure 'F' whereunder, petitioner informed that it had no objection to give the land except financial aspects being worked out. In the letter dated 26.10.2009 Annexure 'G' of MSEZ 5 addressed to the petitioner, it was informed that the Gas Authority of India Ltd., for short 'GAIL' proposed main gas pipelines to the petitioner as also for distributing the lines to MRPL, GMR etc., and since the 4th respondent MSEZ proposed to construct a road cum pipeline corridor in the area, suggested GAIL to approach MSEZ the 4th respondent with the proposal. This letter was followed by another letter dated 23.11.2009 Annexure 'H' addressed to the petitioner bringing to the notice of the petitioner about the minutes of the meeting dated 30.9.2009 whence petitioner had no objection to give the land to the 4th respondent MSEZ for utilizing it as public service road provided, sufficient space is made available for the maintenance of the existing pipelines and to mark the alignment at site of public service road and fix up the date for joint site visit during the next week. It is stated that since the land was slushy due to rain it was not possible to mark 6 the alignment immediately. 4th respondent, it is stated engaged surveyors to mark, align the sites which would be completed within 3 days, while the petitioner had asked the MSEZ the 4th respondent to provide the extent of land with survey numbers before preparing the agreement of land. In addition, it was stated that MSEZ is looking forward to finalization of the land transfer from petitioner and therefore called for a meeting to finalise the modalities at the convenience of the petitioner.
4. Petitioner alleges that instead of a negotiated settlement over the financial aspects of taking over the land for the pipeline corridor and road and pay compensation, since the petitioner had not objected to transfer of that portion of the property, nevertheless, the 4th respondent MSEZ issued the following notifications dated 22.9.2010, (i) Annexure 'J' under Section 1(3) of the Karnataka Industrial 7 Areas Development Act, 1966 for short 'Act' declaring that Chapter 7 of the said Act would come into force at once, in the area as mentioned in the notification, which included the properties belonging to the petitioner. (ii) Annexure 'K' invoking Section 3(1) of the KIAD Act declaring the area to be an industrial area and (iii) Annexure 'L' under Section 28(1) proposing to acquire portion of the petitioner's land.
5. Petitioner responded to the said notification under Section 28(1) of the KIAD Act as well as notice dated 20.10.2010 by reply dated 16.11.2010 Annexure 'M', interalia requesting the MSEZ the 4th respondent not to proceed with the proposed acquisition and to drop the said proceeding on the premise that, land put to use for industrial purposes cannot be acquired for industrial use and hence, the notifications are illegal and amounts to flagrant violation of rule of law, in addition to a contention 8 that, land once vested in the State and later divested by the State cannot be again acquired by exercise of eminent domain power. It was further alleged that the KIADB indulged in malafide exercise of power by proposing to notify the land, though the petitioner and the 4th respondent were actively negotiating terms for the lease of the land, while financial aspect was not settled, the 4th respondent thought it wiser to invoke the statutory power and acquire the land, thereby unsettling the position in law.
6. It is further alleged that despite the response of the petitioner, KIADB issued a notification dated 29.12.2012 invoking Section 28(4) of the KIAD Act Annexure 'N' followed by a notice dated 29.1.2013 Annexure 'P' under Section 28(6) of the said Act to deliver possession of the acquired land. Hence, this petition for the following relief:
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"Issue a writ in the nature of certiorari quashing the impugned notification bearing No.CI659SPQ 2012 Bangalore dated 29.12.2012 issued by the respondent No.1 under Section 28(4) of the Karnataka Industrial Areas Development Act and published in the official gazette on 31.12.2012 which is enclosed as Annexure-N."
7. Learned counsel for the petitioner reiterates the averments and the grounds set out in the memorandum of petition.
8. In the first place there is no challenge to the notifications Annexure 'J' under Section 1(3); Annexure 'K' under Section 3(1) and; Annexure 'L' under Section 28(1) of the KIAD Act, hence the contention that the land when put to use for industrial purpose no fresh notification declaring as industrial area sought to be acquired and land once 10 vested in the State and conveyed to the petitioner cannot be subject matter of a fresh notification, and that the preliminary notification is malafide, are not available to the petitioner and are rejected.
9. It is not in dispute that the land sought to be acquired by KIADB forms a portion of the land allotted to the petitioner to carry on its industrial activity under the Sale Deed Annexure 'A' as rectified by the Rectification Deed Annexure 'B'. It is also not in dispute that a corridor is created for laying pipelines by extending a licence in favour of MRPL, in the land belonging to the petitioner, as indicated in the deed of licence Annexure 'D'. There is also no dispute that MSEZ intended to use the corridor for laying gas pipeline and a corridor road so as to supply gas to the petitioner amongst other industries, for which purpose a joint meeting when held on 03.10.2009, and at point No.10 of the minutes Annexure 'F', the petitioner stated that it 11 had no objection to give the land except for financial aspects to be worked out and reads thus:-
"10.MCF informed that it has no objection to give the land, but financial aspects need to be worked out."
Point nos.1 to 9 of the said minutes indicate that MRPL asked the fourth respondent - MSEZ to provide plan, alignment, cross section details, drainage system for the public service road which was agreed to by MSEZ and that it was designed without disturbing the natural drainage system by placing cross drainage works wherever required and to align public service road by providing sufficient space for maintenance of existing pipelines while also giving effect to the EIL guidelines so as to maintain clear distance from the existing pipelines and construct the public service road before the construction of the road cum corridor, while fixing the date for joint site visit at alignment of the public service road. In addition, petitioner asked the 4th respondent to provide the extent of land with service numbers before 12 preparing the agreement for land transfer. The licensee MRPL also indicated that it had no objection to give the land to the 4th respondent for the purposes of utilizing it as a public service road subject however to providing sufficient space maintenance of existing pipelines. Yet another fact not in dispute is M/S.GAIL proposed the fixing of main gas pipeline to the petitioner and also to distribute to MRPL as set out in the letter dated 26.10.2009 - Annexure-G.
10. From the afore stated admitted facts, there can be no more dispute that the lands proposed to be acquired, belonging to the petitioner is for a public purpose for supply of gas by M/S.GAIL to the petitioner and other industries. Petitioner having expressed no objection for the use of the land as a corridor for the pipeline and the formation of a road, beside it, while the licensee MRPL under the license deed - Annexure-D also having expressed its no objection to put to use the said land for running a of gas pipelines by GAIL, cannot be 13 heard to contend that there are serious objections to the acquisition of the said land.
11. A faint effort of the learned Counsel for the petitioner to submit that in the letter Annexure-E, 4th respondent sought 1.4 acres out of 3.5 acres subject matter of license under the license deed Annexure-D to MRPL for proposed public service road nevertheless, the notifications to acquire 3.47 acres of land is far in excess of what was proposed and therefore, the notifications are vitiated, is without substance. I say so because in the minutes of meeting Annexure-F, the 4th respondent was required to make an alignment at public service road and provide the extent of land with survey numbers, which, apparently, is not said to have been carried out with the co-operation of the petitioner while the 4th respondent - MSEZ, issued the notifications in question to acquire 34.7 acres of land. The public purpose for which the land of the petitioner is sought to be acquired, it cannot be said that there is no need for 14 the 4th respondent - MSEZ to acquire the 4.47 acres of land.
12. The further submission of the learned Counsel for the petitioner that after having paid the purchased price on allotment of the land, by the State, through its instrumentality - the KIADB, the land cannot be notified as an industrial area under Section 3(1) or 1(3) of the Karnataka Industrial Area Development Act, in the light of law laid down by the Apex Court in the reported opinions is without substance. Admittedly the petitioner is the owner of the land conveyed under the sale deed and the rectification deed at Annexure-A to C. From out of it, a portion of the land measuring 3.5 acres in survey nos.8 to 10 and 12 of Panambur village are subject matter of acquisition at Annexure-D in favour of MRPL. Therefore, the land does not belong to the State or its instrumentality. If it is so, there is no law that comes in the way the State exercising eminent dominion power to acquire the land belonging to the petitioner. The decisions on which reliance is placed by the learned 15 Counsel for the petitioner does not support the contention advanced since in those cases, the principle laid down is that if the lands subject matter of acquisition belong to the State, then the State cannot acquire such lands by issuing notifications under the Land Acquisition Act, 1894. Even otherwise, as noticed supra, there is no challenge offered to the notifications, Annexures - 'J' 'K' & 'L'.
13. The next submission of the learned Counsel for the petitioner that KIADB indulged in mala fide exercise of power by proposing to notify the lands though petitioner is negotiating with 4th respondent - MSEZ for lease of the said land, is also without merit in the light of point no.10 as recorded in the minutes of meeting - Annexure-F. Petitioner having stated that it had no objection to give the land except for financial aspects which need to be worked out indicates that all that the petitioner was looking forward to its compensation for giving up of the land acquired. It is not as if the petitioner has no remedy to demand and recover 16 compensation nor is it the case that the respondent - KIADB is not likely to compensate the petitioner for loss of land and therefore, acquisition cannot be termed as mala fide exercise of power.
14. The next submission that the notification Annexure-'N' is vague, since boundaries are not properly made out, is not acceptable to annul the said notification. Even according to the learned Counsel for the petitioner, the Joint Measurement Certificate is not so far prepared, in other words, joint measurements will have to be taken in a survey conducted in the presence of the parties and if there is a need to rectify the boundaries in the notification Annexure-'N' under Section 28(2) of the KIAD Act, there can be no reason to believe that the KIADB would not carry out such a rectification.
15. The last of the submission of the learned Counsel that since lands subject matter of notification are classified as 'B' kharab lands, the petitioner apprehends he is not likely to be compensated for the said land, in my opinion is misconceived. There being no 17 dispute that the lands when classified as 'B' kharab land was acquired by the State, under the KIAD Act, and transferred to the petitioner by way of a conveyance under the conveyance deed Annexures-A to C, having become the lawful owner of the said properties, it is for the petitioner to putforth the claim for compensation which the Land Acquisition Officer is duty bound to consider and pass orders accordingly. In my considered opinion, the writ petition devoid of merit is rejected.
Sd/-
JUDGE Bkp/sh